Neutral Citation: 1996 ONICDRG 129

OIC A95-000412

ONTARIO INSURANCE COMMISSION

BETWEEN:

WANDA GRAY

Applicant

and

ZURICH INSURANCE COMPANY

Insurer

DECISION

Issues:

The Applicant, Wanda Gray, was injured in a snowmobile accident on January 10, 1994. She applied for and received statutory accident benefits from the Insurer, payable under the Schedule.¹ February 23, 1996 Caregiver benefits were terminated by the Insurer on February 14, 1995. The parties were unable to resolve their disputes through mediation and the Applicant applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

1. Has Ms. Gray been deemed to have elected to receive caregiver benefits, pursuant to the procedure set out in section 61 of the Schedule? If the answer to this question is Yes, then it will be unnecessary to consider the following issue:

1a. Is Ms. Gray disentitled from receiving income replacement benefits by the provisions of section 58(3)(b) of the Schedule?

2. Is Ms. Gray entitled to caregiver (or income replacement) benefits after February 14, 1995?

3. Is the Insurer entitled to repayment of any benefits?

The Applicant also claims interest on any amounts owing, and her expenses incurred in the hearing.

Result:

1. Ms. Gray is deemed to have elected to receive caregiver benefits, pursuant to the procedure set out in section 61 of the Schedule.

2. Ms. Gray is entitled to caregiver benefits in the sum of $250.00 per week from February 15, 1995 to January 10, 1996.

3. The Insurer is not entitled to any repayment of benefits.

4. Ms. Gray is entitled to interest on the amount owing and her expenses incurred in the arbitration.

Hearing:

The hearing was held in Barrie on April 29 and 30 and May 1, 1996 before me, K. Julaine Palmer, Arbitrator. After the hearing, I received written submissions from the parties until May 31, 1996. The transcript of my oral ruling with respect to an election by Ms. Gray under section 61 of the Schedule is set out in Schedule A to this decision.

Present at the Hearing:

Applicant:

Wanda Gray

Applicant's Representatives:

Andrew R. Kerr

Barrister and Solicitor

Susan Beatty

Legal Assistant

Insurer's Representative:

Guy Farrell

Barrister and Solicitor

Insurer's Officer:

Debbie Diamanti

(April 29th only)

Witnesses and Exhibits:

Wanda Gray

Roy Arfanakis

Georgia Sotirakis

Rae-Ann Bennett

Dave Rose

David Jongsma

Jane MacDonald

Georgia Sotirakis was assisted in her testimony by Mary Avalis, an interpreter of Greek and English.

The parties filed a medical brief and 11 other exhibits.

Evidence and Findings:

Background

Wanda Gray was seriously injured in a snowmobile accident on January 10, 1994. She sustained a compound fracture of her left femur (thigh bone), a comminuted fracture of her right femur and a fracture of her left fibula (lower leg bone). The fractured femurs were repaired surgically with intra medullary rods, which were eventually surgically removed on October 25, 1994. The fracture of the left fibula was casted until February 23, 1994. Ms. Gray attended physiotherapy at Royal Victoria Hospital from March 23 to September 27, 1994 and has attended at Quinn Rehab Services since February 23, 1995 on an ongoing basis.

Ms. Gray and her husband are the parents of a son, Dakota ("Cody"), born September 28, 1992. At the time of the accident, Ms. Gray was caring for her son, then 152 months old, and working approximately two evenings per week as a bartender. In 1993, she earned $7.75 per hour and grossed $4,041.71, not including tips. After the accident, she was paid "Caregiver Benefits" by the Insurer, under section 18 of the Schedule, at the rate of $250.00 per week, from January 17, 1994 until February 14, 1995.

The Law

Under section 18 of the Schedule, in order to receive a caregiver benefit, the insured person must:

1. sustain an impairment as a result of an accident,

2. at the time of the accident, reside with a person (under age 16 or who requires care because of physical or mental incapacity) in respect of whom she is the primary caregiver [a term which is not defined],

3. within 2 years of the accident, suffer a "substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident" or suffer "a partial or complete inability to carry on a normal life" [which is defined in sections 2 and 3 of Schedule],

No caregiver benefit is paid for the first week of disability. The benefit continues as long as the insured person qualifies under point 3. above or until the child turns 16.² However, if the person qualifies under the "partial inability to carry on a normal life" subsection and does not qualify under the "substantial inability to engage in ... caregiving" subsection, the benefit stops 104 weeks after the insured person first qualified for caregiver benefits, unless the person suffers a complete inability to carry on a normal life as a result of the accident.³

Result

In this case, I find that Ms. Gray will receive a caregiver benefit for 104 weeks (until January 10, 1996), because she qualifies under the second part of the test —"partial inability to carry on a normal life." I do not find that she suffered "a substantial inability to engage in the caregiving activities in which...she engaged at the time of the accident" after February 14, 1995. I will deal with this latter point first in this decision.

Interpretation of Caregiving Activities

At the hearing, I raised concerns about the correct interpretation of the words "the caregiving activities in which...she engaged at the time of the accident" as set out in section 18(1)3.i. of the Schedule. Ms. Gray's caregiving activities have changed since the accident on January 10, 1994. At that time, she cared for her infant son, Cody, aged 152 months. By the time of the hearing, Cody was 3 years, 7 months old. I received written submissions from the parties with respect to this point.

Submissions

In his written submissions, counsel for the Applicant described the issue in this manner:

The issue is whether caregiver activities in which the Applicant engaged at the time of the accident means the actual and specific chores that the applicant was doing at the time of the accident in caring for a 16 month old, or whether the section allows consideration of the change in the tasks as a result of Cody's growing up.

I agree with this characterization of the issue. The Applicant's counsel submitted that this tribunal has a choice between two approaches:

The first is to interpret the phrase "caregiver activities" in which the Applicant engaged at the time of the accident meaning literally the actual and specific tasks in which the caregiver was engaged at the time of the accident ("the literal approach"). The second is to take a more functional approach, interpreting "caregiver activities in which he or she was engaged at the time of the accident" as meaning the job in which the caregiver was engaged at the time of the accident, ("the functional approach"). In this case, the functional approach means that if before the accident the Applicant was required to take care of her son Cody, the test two years later is whether she is able to do that job, i.e. to take care of her son Cody, regardless of whether the specific list of chores involved in taking care of Cody has changed.

The Applicant's counsel submits that by adopting the literal approach, I would have to consider Ms. Gray's abilities to perform some tasks which neither she, nor anyone else is called upon to perform any longer. Essentially, I would be answering a hypothetical question; namely, would Ms. Gray be able to care for a 152 month-old, if one existed. That is, would Ms. Gray be able to take care of her son, if he had remained 152 months old. The Applicant's counsel submits that this tribunal should avoid deciding this sort of artificial question.

The Applicant further submits that the literal approach is contrary to the purpose of the caregiver benefit. If the caregiver benefit is provided to compensate injured persons for being substantially unable to look after their children, then benefits ought to be paid when, in fact, they are unable to look after their children. The benefit is not designed to compensate individuals for being unable to look after a "notional child," or being unable to perform tasks which are no longer required of them, in any event.

The Applicant submits that absurd and unjust results could result from adopting a literal approach to section 18. For example, if in this case the Applicant is substantially unable to look after a child aged 3 years 7 months, as a result of the injuries she received in the accident, but would still be able to look after a baby of 152 months, then she would not be entitled to benefits. The Applicant submits that "caregiver activities in which...she was engaged at the time of the accident" must be interpreted based on what is to be accomplished. Ms. Gray's job was to care for Cody and we should consider whether or not she can do that, regardless of how the task changes.

The Insurer's counsel submits that the key to the correct interpretation of section 18 is the breadth or narrowness of the interpretation of the word "activities." He submits that the words of the Schedule do not mean that one must look at the specific tasks that a caregiver would perform for say, a one-year old child, when the injured person has been receiving benefits and the child no longer requires the same care. The Insurer submits that at different times, caregivers may provide different levels of service in respect of feeding, clothing, supervising, transporting and educating a child. The provisions of section 18(5), the Insurer submits, makes it clear that the inquiry relates to recipients of care at the time of the accident, not additional individuals requiring care (for example, additional children added to the family or other persons who require care because of physical or mental incapacity).

In essence, then, both the Insurer and Applicant agree that a "functional test" should be applied to the words "caregiving activities in which he or she engaged at the time of the accident." I am troubled by this interpretation of the language of section 18 as it may create a distortion of the test to be applied. I find it significant that the test for qualifying for these benefits under the Schedule has changed from a "substantial inability to perform the essential tasks in which he or she would normally engage," required by the former section 13⁴ to a new test of "substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident" in section 18 of the present Schedule. To me, the change in language seems to emphasize that it is the activities at the time of the accident which are the subject of the inquiry.

In the present test, it seems to me, along with the "tightening up" of many aspects of the policy coverage, the time frame of reference has been standardized by what was in place for caregiving activity "at the time of the accident."

However, because of the conclusion I have reached on the facts of this case, it is unnecessary for me to interpret this language. I conclude that, on the evidence adduced at the hearing, after February 14, 1995, Ms. Gray has not suffered a substantial inability to engage in the caregiving activities in which she engaged at the time of the accident. I so find, whether the test is her substantial inability to care for a 152 month old child or a child of age 2 years 42 months (at February 14, 1995) to a child aged 3 years 7 months (at the time of the hearing).

Ms. Gray's Caregiving Activities

I find that Ms. Gray's caregiving activities of her son, Cody, included the following, both at the time of the accident on January 10, 1994, and at the time of the hearing in May 1996: bathing, feeding, dressing, entertaining, playing, teaching, exercising, comforting, preparing his meals, laundering his clothes, keeping his surroundings reasonably clean, shopping for his groceries and clothes, and driving him to appointments and to visit family and friends. At the time of the accident, Ms. Gray also changed her son’s diapers and was taking him to swimming lessons. In May 1996, Cody weighed 39 pounds; at the time of the accident, he weighed 18 pounds.

Medical Evidence

For both sides in this case, the medical evidence with respect to Ms. Gray's ability or inability to perform her caregiving activities is fraught with difficulties. Ms. Gray has presented evidence from a chiropractor, acting as a disability Designated Assessment Centre (DAC), under the Insurance Act which states she is "disabled from performing essential caregiving activities" as of May 29, 1995. [I note that this opinion does not reflect the actual language of the Schedule.]

One of the problems with the DAC chiropractor's report is that on a previous examination, nearly four months earlier (February 4, 1995), the same chiropractor found Ms. Gray "not disabled from performing essential caregiving activities." In the interval between the two reports he found that "she has improved 40-50% and she reports that she has improved 40%" (my emphasis). In his report and testimony, it was clear that the chiropractor based his change of opinion on the fact that "Ms. Gray's son has increased his activity level substantially since our last assessment and that she has diffuculty (sic) running after him, lifting him and bathing him." He also expected that with eight to ten weeks further rehabilitation (physiotherapy), Ms. Gray's disability would cease after ten to fourteen weeks. By then, he said he expected Ms. Gray to be able to run after Cody, lift him and bathe him.

The chiropractor could not detail what he believed were Ms. Gray's "essential tasks" in caring for Cody. His impression was that she was able to clean bathtubs and toilets;⁵ he testified that "we just ran through it generally in overview." By the time of the hearing, the chiropractor had read the subsequent Functional Capacities' Evaluation ("FCE") and other medical reports and testified he believed that the FCE demonstrated that the objectives set for the further eight to ten weeks of physiotherapy after his examination at the end of May 1995 were reached. He believed they demonstrated that Ms. Gray is able "to perform the necessary tasks" as at the end of February 1996.

In my view, the chiropractor's evidence is flawed because of his failure to refer to the words of section 18 of the Schedule and base his testing and opinions on that standard. The language and recommendations of both DAC reports appear to focus more on Ms. Gray's rehabilitation than on disability assessment. Section 18 refers to a "substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident." It does not use the words "essential tasks." That is part of the language of section 13 in the former Schedule (O.R. 672/90, as amended by O.R.660/93 and 779/93), where the test for caregiver benefits was "substantial inability to perform the essential tasks in which he or she would normally engage." In my view, in the area of disability assessment, the difference in the language could be critical. The word "essential" has been eliminated altogether. That adjective has been subjected to intense arbitral scrutiny.

In his reports, the chiropractor made no inventory of Ms. Gray's "caregiving activities in which... she engaged at the time of the accident" nor did he comment on the issue of "substantial inability." It is evident that Dr. Jongsma believes that the test changes over time. In that respect, he may support the functional approach which is urged upon me by both counsel. However, this was not clear from his testimony or reports. Although I did not find the conclusions of the DAC assessments to be of much assistance, the objective measures of activities which were tested were useful.

With respect to the weight to be accorded to this report by a Designated Assessment Centre, I agree entirely with the opinion expressed by Sr. Arbitrator Rotter in the case Walker and State Farm Mutual Automobile Insurance Company (February 23, 1996), OIC A-009905, at pages 19-20 :

The weight to be accorded any such evidence must be in the discretion of the adjudicator, based on a careful evaluation of the thoroughness, relevance, neutrality and value of the opinion provided. Such factors as, for example, the familiarity with the details and history of a particular case, the length and thoroughness of the examination, and the particular area of expertise of the evaluator must all be carefully assessed. Ultimately, the arbitrator has the responsibility of considering all the evidence — not just the evidence from the DAC — and making a final determination based on his or her best judgement. It is not sufficient to simply accept or adopt the judgement of the DAC assessor, who does not have the legal responsibility or opportunity to hear and weigh all the available evidence in a particular case.

The Legislature has ultimately given the statutory decision-making authority to the arbitrator. I find it would be an abdication of that authority or an inappropriate fettering of discretion to accept the opinion of a DAC assessor in lieu of exercising the authority conferred on me.

Ms. Gray presented evidence from an orthopaedic surgeon, who saw her twice, once on referral from her family doctor and later for purposes of providing a medical-legal report. Again, the conclusions of this medical practitioner are not helpful because he does not evaluate the "caregiving activities in which she engaged at the time of the accident" and does not consider whether Ms. Gray is substantially disabled from these activities. Dr. Bull states:

You [Ms. Gray's counsel] state that she is unable to look after her son and the insurance company has cut off her benefits.

You state that she needs "a substantial inability to engage in caregiving activities in which she engaged at the time of the accident." Basically she does have that inability......

She told me, as she told you, that she moves more slowly now. She cannot squat, she has trouble lifting her child, and could not catch him if he were outside with her. She cannot really run at all.

Thus she is legitimately and substantially unable to do the caregiving...

Dr. Bull suggests in his report that since Ms. Gray cannot squat, has trouble lifting Cody, and could not run to catch him, she is substantially unable to care for her son. At other points in his report, Dr. Bull reports Ms. Gray's trouble vacuuming and inability to "get down properly to clean the floors or do the bathtub, because she cannot squat."

Other helpful, medical evidence at the hearing was received from physiotherapist Rae-Ann Bennett, whose notes and reports were also filed. Ms. Bennett has an excellent knowledge of Ms. Gray's mobility, acquired over 14 months of physiotherapy treatment from January 1995 to March 1996. At times, Ms. Gray was attending physiotherapy three times per week. In her report of April 21, 1995 (a year before the hearing), Ms. Bennett wrote:

Ms. Gray is limited regarding any quicker paced walking. She is unable to run or squat. Sudden movements are both difficult (due to lack of power/strength and reaction time) and painful. She is unable to lift more than 15 to 20 pounds without exacerbating her low back pain and right knee pain.

In 1996, treatments were continuing at the rate of one each week. Ms. Gray also began to receive osteopathic treatments from Cathy Eydt, C.A.T., a fourth year osteopathic student. When Ms. Bennett wrote to the Insurer in January 1996, she noted Ms. Gray had

improved gait and trunk proprioception; improved posture, improved range of motion and strength in the low back and bilateral hips/lower extremeties (sic); improved mobility of trunk (including thorax and neck)....

In my opinion, factors hampering Ms. Gray's return to pre-accident status are her intermittent right knee and hip pain; an ongoing left pelvic dysfunction with possible ligamentous damage to her left sacroiliac joint; her lack of right thoracic rotation affecting her trunk (which is resultant from incorrect postural patterns/compensations); postural strength and endurance/tolerance (buttocks, abdominals, extensors) for prolonged standing, walking and daily activities.

Ms. Bennett recommended the Insurer purchase a fitness membership for Ms. Gray to foster independence and allow Ms. Gray "to get into more aggressive pre-accident activities."

In cross-examination, Ms. Bennett admitted she did not know, at the time of the hearing, the standard of disability under which Ms. Gray would qualify for caregiver benefits. She testified she thought Ms. Gray needed to be capable of carrying out all of her activities for caring for her child. She testified that her major concerns with Ms. Gray's residual disabilities were with respect to kneeling, squatting, lifting, sudden position changes, and running. She stated that she would encourage Ms. Gray now to pace activities such as vacuuming and not try to do the whole house at once. She encouraged Ms. Gray in her (failed) attempts in the spring of 1995 at rollerblading and tried to coax her towards swimming and biking. Ms. Bennett did not know that Ms. Gray had been fond of ice skating before the accident.

Ms. Bennett indicated that, in her opinion, overhead housework would exacerbate Ms. Gray's symptoms, but that she should now be able to do dishes, laundry, dust, cook, and mop (but not scrub) a floor. Apart from being able to chase her son or perhaps bathe him, she should be able to look after Cody. Ms. Bennett was of the view that Ms. Gray should be able to do her grocery shopping, except lifting the heaviest parcels and that her walking was restricted only for long distances and by speed. In concluding, Ms. Bennett testified that she believed that if Ms. Gray's sole disability was an inability to run, that would not amount to a substantial inability to care for a child of 1½ years, but it would amount to a substantial inability to care for a 3½ year old.

The Insurer's medical reports also demonstrate extremely unfortunate choices of words, where precise language of expression of opinion, based on the test set out in the Schedule, is crucial. Dr. George Rado, physiatrist, examined Ms. Gray twice — once in August 1994 and again on February 22, 1996. Although Dr. Rado’s objective examination results are useful here, his conclusion is not, since the words "totally disabled" have intruded into his impression. Dr. Rado wrote in his report of April 2, 1996:

On a physical basis, there were no impairments on current examination which would indicate that she is totally disabled from undertaking normal daily living activities, regular household activities or child care activities. Activities involving squatting or kneeling would require pacing and care.

Dr. E.P. Urovitz, orthopaedic surgeon, also participated in the multi-disciplinary evaluation of Ms. Gray, by examining her on March 1, 1996. Dr. Urovitz felt that Ms. Gray's right femur had healed in a slight internal rotation, but insufficiently rotated to necessitate a surgical intervention to fix it (by derotation osteotomy). Like Dr. Rado, he also was of the opinion that the impairment in right hip movement is permanent and will result in a limitation in Ms. Gray’s ability to squat and kneel. He concluded:

Provided that Ms. Gray uses discretion and paces herself, one would feel that she should be capable from a physical point of view of being able to do all the normal activities that would ordinarily be expected of her in terms of homemaking and household care.

Unfortunately, what Dr. Urovitz classifies within "normal activities that would ordinarily be expected of her..." is not specified.

The Functional Capacities Evaluation of February 1996 shows that Ms. Gray cannot run, cannot lift 39 pounds, and cannot squat or kneel. The examiners conclude that Ms. Gray's inability to run after Cody can be addressed by fencing and a high latch, her inability to lift him can be solved with help from her husband or by Cody walking himself, and the task of bathing the child is ignored altogether. Although I find the data collected by the examiners to be useful, objective measures of the activities tested, I find these conclusions unreasonable or incomplete.

Conclusion regarding Substantial Inability

In determining what is a substantial inability to engage in caregiving activities in which he or she engaged at the time of the accident, the Legislature has set adjudicators a task of looking at the disability in both an objective and subjective manner. The caregiving activities are specific to the individual caregiver and person for whom the care is provided. For example, in my view, if invariably a primary caregiver like Ms. Gray never did the child's laundry prior to the accident, an inability to perform this task after the accident would be irrelevant to my consideration of her substantial inability to engage in caregiving activities.

However, for those other caregiving activities which are still be performed after the accident, or performed with reasonable and practical modifications, I believe the Legislature has called for a more objective and reasoned measure of inability. The level of inability must be "substantial," or a sizeable inability, and more than just some inability. In my view, it is not enough to demonstrate that you would have cared for your child differently if the accident had not intervened. Neither is it sufficient to fail to meet a standard of perfection for childcare.

In Ms. Gray’s case, the evidence shows her son is cared for by his paternal grandmother on a regular basis, including overnight visits. Mrs. Sotirakis is nearly 70 years old and has had some health difficulties with arthritis in one knee and a history of heart problems. She manages her active grandson with some difficulty, on her own, but she loves him and knows his mother needs a regular break so that she can participate in rehabilitation, then wind down without worrying about Cody. Ms. Gray’s aunt also provides care for Cody on weekdays, on a regular basis, while Ms. Gray attends physiotherapy. In my view, these activities by a loving grandmother and great-aunt do not demonstrate Ms. Gray’s inability to reasonably care for her son. I believe she could cope with looking after Cody on a full-time basis, with paid babysitters for times when she pursued rehabilitation and medical appointments. I believe that these relatives are providing extra support, to the extent they are able, that caring relatives provide in times of need, to close members of the family. In addition, in the case of Mrs. Sotirakis, I believe that the fact she is able to care for Cody herself is illustrative of the fact that one does not have to enjoy perfect health and mobility in order to engage in caregiving activities.

On the basis of the reports before me, and the oral testimony of Ms. Gray, I find that she is substantially able to engage in the caregiving activities in which she engaged at the time of the accident in caring for Cody. I find that in order to care for Cody, Ms. Gray has made some adaptations as a result of her injuries from the accident. For example, she does not pick Cody up except on a very occasional basis, because he now weighs close to 40 pounds. According to Mrs. Sotirakis, Ms. Gray sometimes gives Cody a shower, rather than attempting to bathe him in the tub. She plays games with him on a low table, rather than right on the floor. Ms. Gray's outdoor activities with her son are somewhat restricted — she cannot retrieve a ball as many times as Cody would like. However, Ms. Gray is still able to give her son the benefit of outdoor play, since the family has a large, fenced backyard with playground equipment.

Ms. Gray's principal area of complaint or restriction with respect to her care for Cody is her inability to move as fast as he can. She cannot run. Understandably, she is fearful for her son's safety in potentially dangerous situations, when she is his primary caregiver and he runs away from her. Ms. Gray has learned to avoid some of these situations by careful planning. Mrs. Sotirakis testified she copes with Cody's tendency to run off by using a wrist tether. Although this area of restriction is important to note, in my view, it alone, coupled with Ms. Gray's other restrictions, does not move Ms. Gray's caregiving disability into the substantial category. I do not make light of Ms. Gray's residual disabilities; however, in my opinion, many entirely able-bodied parents encounter difficulties in moving as fast as an active pre-schooler.

I disagree with the suggestion that an inability to run after a small child constitutes a substantial inability to engage in the caregiving activities in which Ms. Gray engaged at the time of the accident. Although Ms. Gray suffered severe injuries in the snowmobile accident, she has worked hard to recover as much of her pre-accident function as possible. Since February 15, 1995, in my view, she has been fine-tuning her recovery and building her strength, balance, and endurance.

Partial Inability to Carry on a Normal Life

According to the provisions of section 18(2) of the Schedule, Ms. Gray would be entitled to continuing caregiver benefits after February 15, 1995 if she still suffers:

1. a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident; or

2. a partial or complete inability to carry on a normal life.

Since I have found Ms. Gray does not qualify after February 15, 1995 under the first heading, then I must consider her eligibility under the second.

The phrase "suffers a partial or complete inability to carry on a normal life" is found in various sections of the Schedule, including section 15 (weekly education disability benefits), section 18 (weekly caregiver benefits), and section 19 (other disability benefits). A definition of the components of "partial inability to carry on a normal life" is found in section 2 of the Schedule:

2. For the purpose of this Regulation, a person suffers a partial inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident, the person suffers an impairment that results in a substantial inability to engage in,

(a) personal care activities in which the person ordinarily engaged before the accident;

(b) mobility activities in which the person ordinarily engaged before the accident;

(c) household activities in which the person ordinarily engaged before the accident;

(d) activities in which the person ordinarily engaged before the accident that require the exercise of cognitive powers;

(e) activities in which the person ordinarily engaged before the accident that require the ability to control emotions or behaviour; or

(f) activities in which the person ordinarily engaged before the accident that require communication abilities.

This section has not yet received much interpretation by arbitrators or judges. To my understanding, the language "personal care activities," "mobility activities," "household activities," etc., is unique in the statute and regulatory law of Ontario. It will take many more cases before a good understanding of how these words should be interpreted is achieved.

In this case, the focus is on household activities and mobility activities in which Ms. Gray ordinarily engaged before the accident. As I have written above, the word "activities" is key and is distinguished from the word "tasks" of the previous regulation. The adjective "essential" no longer appears, and reinforces my view that all household and mobility activities, appropriately weighted as to their degree of significance or frequency, are to be considered. The word "normally" which was previously associated with the word "engaged" has been changed to "ordinarily."

Dictionary definitions of the word "activity" speak of the exertion of energy and being active or moving about, or particular occupations or pursuits⁶ Thus, it would be appropriate to consider Ms. Gray's exertion of energy and her pursuits around the house in determining her "household activities" before the accident and her ways of changing position or freedom of movement⁷ in her "mobility activities" before the accident.

Meaning of Mobility Activities

In my mind, some question exists as to whether the expression "mobility activities" in section 2(b) encompasses recreational activities in which one would normally be mobile. In this case, the question would be whether Ms. Gray’s pre-accident activities including ice skating, downhill skiing, waterskiing, fitness classes or exercising, swimming and recreational walking should be considered. Or, should her day-to-day ability and freedom to move or change position by such mobility activities as sitting, standing, walking, moving quickly or running, reaching, using her arms, bending, stretching, kneeling and squatting, and driving a vehicle only be considered.

The Applicant urges me to conclude that "mobility activities" mean more than solely the ability to get from point A to point B, and to interpret this expression with more of a view toward how a decrease in mobility impacts upon an injured person’s lifestyle. The Applicant submits under the Schedule the term "partial inability to carry on a normal life" should not be interpreted as a seriously disabled state. Significantly, she submits, it is a state which is only relevant for up to two years following the accident, when the test tightens to "complete inability to carry on a normal life."

The Insurer here urges a more restrictive view of the words "mobility activities" which would not encompass what it terms "sporting activities." The Insurer calls for interpreting these words to encompass only "purposive mobility." The Insurer suggests that the listing in section 2(a) to (f) of the Schedule does not cover the whole spectrum of human activity in a normal life, but only covers what a person needs to do to have a reasonable existence. For example, the Insurer suggests that the activities enumerated in section 2 do not address the ability of an insured person to pursue cultural or recreational activities, musical pursuits, hobbies, travel for enjoyment, or vacation.

I find that in considering the "activities" of section 2 a subjective inquiry into the activities of the injured person prior to the accident is required. For example, under the heading of "personal care activities," which, happily, does not significantly pertain to Ms. Gray's case, a person's inability to apply cosmetics to her face after an accident could be a significant limitation for someone who consistently used cosmetics prior to the accident. However, another person, who sustained a similar impairment might seldom have engaged in this activity, and hence, it would not figure as prominently in the category set out in section 2(a).

With respect to "mobility activities in which the person ordinarily engaged before the accident" in certain cases the emphasis could be less on the types of mobility activities than the frequency or regularity implied by the phrase "ordinarily engaged before the accident." Hence, someone who waterskiied daily during the season might be seen to "ordinarily engage" in that mobility activity, whereas someone who engaged in that activity only occasionally might not. The question would then become that of the frequency of the activity. I use this example without accepting that "mobility activities" should actually be interpreted to include consideration of the injured person’s waterskiing activity.

In this case, it is pertinent to examine Ms. Gray’s ability to run or move quickly before and after the accident. Although, her pre-accident ability to run was never dealt with in detail, I find that as an active, younger person, who engaged in fitness instructing and vigorous sports, she had that ability. Post-accident, it appears to be common ground, and I find that she has no ability to run and little ability to move quickly for any sustained period. Whether Ms. Gray "ordinarily engaged" in running within a reasonable time before the accident is in some doubt, in my mind. Certainly, however, she moved quickly on regular occasions, and in my view, moving quickly and running fall closely enough together to be in the same category of mobility activity. I find that she "ordinarily engaged" in moving quickly before the accident.

I find that as a result of the accident, Ms. Gray has suffered an impairment that resulted in a substantial inability to engage in mobility activities in which she ordinarily engaged before the accident from February 15, 1995 to a period ending "104 weeks after ...[she] first qualified for weekly caregiver benefits." My reading of section 18(3) and (4) of the Schedule suggests, on the facts of this case, that period would end on January 10, 1996. I make this finding on the basis that, in my view, Ms. Gray has been substantially impeded in her ability to sit, stand, and walk, at length, and to move quickly, squat and kneel, at will, by the impairment she suffered in the accident of January 10, 1994. The exact impairments to Ms. Gray's physiological or anatomical structures have been set out in detail, and particularly well, in the evidence of the physiotherapist.

I do not find, however, that Ms. Gray has been substantially disabled since February 15, 1995 from engaging in "household activities" in which she ordinarily engaged before the accident. In my view, the evidence supports a finding that Ms. Gray's ability to act as the family housekeeper, cook, and gardener has been moderately compromised in the period between February 15, 1995 and January 10, 1996, but not to a substantial degree.

Consistency

I have examined my findings with respect to consistency. In this case, I do not find it inconsistent to determine that between February 15, 1995 and January 10, 1996, Ms. Gray has suffered a substantial inability to engage in mobility activities in which she ordinarily engaged before the accident and, at the same time, deny that she has been substantially impaired in her ability to perform household activities and caregiver activities. In my view, the latter two categories comprise a much broader range of activity than mobility activities. Many more sedentary, cognitive and communication activities are involved in those categories. In addition, in my view, the evidence demonstrates that Ms. Gray has largely been able to return to the vast majority of those activities. Interventions by her husband, mother-in-law, aunt, and friends have spared her from the most onerous of her pre-accident tasks, but I do not find Ms. Gray substantially unable to perform those activities. Particularly in the area of household chores, Ms. Gray accepts the willingness of close friends and relations to assist her with activities which she would otherwise perform more slowly and with considerable discomfort.

Expenses:

The Applicant seeks an award of the expenses she has incurred in this arbitration. An award for expenses may be made under section 282(11) of the Insurance Act, which provides as follows:

The arbitrator may award to the insured person such expenses incurred in respect of an arbitration proceeding as may be prescribed in the regulations to the maximum set out in the regulations.

The prescribed expenses and amounts are set out in Schedule F of the Dispute Resolution Practice CodeÞ1995 Release and in Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

In the McCormick and Economical Mutual Insurance Company case (October 2, 1991), OIC A-000139, Sr. Arbitrator Susan Naylor made the following comments about expenses, with which I agree:

The discretion to award expenses should be exercised, having regard to the intent and purpose of the legislative scheme. The arbitration process has been established under the Insurance Act, as amended, in order to facilitate applicants' access to relatively inexpensive, speedy and informal adjudication of disputes regarding no-fault benefits. The discretion to award expenses should be exercised in accordance with this objective, having regard to the individual circumstances of each case.

Accordingly, it is appropriate to award an applicant his or her expenses, unless, in the circumstances of the particular case, it is determined that the application for appointment of an arbitrator was manifestly frivolous or vexatious, or that the applicant's conduct unreasonably prolonged the proceedings.

The Director of Arbitrations approved this statement of the principles guiding an award of expenses, in the main, in the appeal decision in Calogero and The Co-Operators General Insurance Company (February 13, 1992), OIC P-000251.

I exercise my discretion to allow Ms. Gray her expenses as set out in Schedule F of the Dispute Resolution Practice Code–1995 Release. In the event that the parties cannot agree as to the total amount of expenses, a party may apply for assessment of the expenses through the Office of the Registrar.

Order:

1. Ms. Gray is deemed to have elected to receive caregiver benefits, pursuant to the procedure set out in section 61 of the Schedule.

2. The Insurer shall pay Ms. Gray caregiver benefits in the sum of $250.00 per week from February 15, 1995 to January 10, 1996.

3. The Insurer is not entitled to any repayment of benefits.

4. The Insurer shall pay Ms. Gray interest on the amount owing, according to the provisions of section 68 of the Schedule and shall pay her expenses of the arbitration, under the provisions of section 282(11) of the Insurance Act, in accordance with the prescribed amounts set out in Schedule F of the Dispute Resolution Practice Code—1995 Release and Ontario Regulation 664, R.R.O. 1990, Dispute Resolution Expenses.

August 2, 1996

K. Julaine Palmer

Arbitrator

Date

SCHEDULE "A"

RULING

Oral Ruling by Arbitrator K. Julaine Palmer on April 29, 1996 re Election under section 61 of the Schedule

... I am ready to give a decision with respect to the question that you have raised this morning.

Although we are at April 1996, this legislation that we are dealing with today is actually quite new to arbitration at the Commission and it has not been interpreted an awful lot. I don’t think there are any decisions that have interpreted s. 61 and this election that is supposed to be made by an insured person. If there are and you have not told me about them and I don’t know about them, then we will both be in trouble but, I don't know of any.

In s. 61 the word "shall" is used a lot; but, equally, although they use the word 'shall' in more than one place, s. 61 does not give any time frames about providing the Notice of Election to an insured person. So, I think that s. 61 might be considered to be poorly drafted in that way. Section 61 (2) talks about:

"The Insurer shall notify the person..." It doesn't say when. It probably contemplates this is going to take place early on in the process of an insured person’s claim; probably, on the initial review of the application for benefits by whoever is in charge of that person's file at the insurance company.

This case that we are dealing with today arises out of an accident that took place ten days after the legislation came into effect. I would presume that at that time people were just becoming acquainted with the manner in which the legislation was designed to operate. Section 61 (4) states that,

"Pending receipt of the person's election, the insurer shall pay one of the weekly benefits to which the person is entitled."

Now, that could mean two things, in my view. It could mean that before an election is sent out, the insurer has to pay; or, it could mean that after an Election Notice has been sent out, the insurer has to pay. But, it also goes on to say that,

"The insurer shall pay one of the weekly benefits to which the person is entitled."

My question to myself is, who makes that determination as to what kind of a benefit the person is entitled to at this early stage in the process when it is contemplated that an election document is being sent out? I think, retrospectively, it is going to be an arbitrator or a court who is going to decide what benefit the person is entitled to. But, at this stage of the game, I think that s. 61 (4) contemplates the benefit to which the insurer believes the person is entitled. Now, that means to me then that, although it appears that the insurer must pay something to the insured person while the election is being considered, I don't think that s. 61 (4) is meant to overrule the other provisions of the legislation that talk about when an insurer does not have to pay, as in s. 58. And s. 58 contemplates a whole host of occasions that an insurer would not have to pay; although, if a person was injured. For example, if the person who was injured was an excluded driver under the contract, even though the person might appear to be entitled to income replacement benefits and education disability benefits, the insurer would not have to pay if it was relying on the excluded driver exclusion.

In this case, by the time the election document was sent, perhaps the insurer had decided that the applicant was not entitled to any benefit, whether income replacement benefit or caregiver benefit. If we go on and look at s. 61 (5), it says what the up-shot is. If the person doesn’t make any election, the conclusion it comes to is that the applicant is deemed to have elected the highest benefit. And here, that would be, in Ms. Gray’s case, the caregiver benefit; in fact, that was what was paid. So, I have considered the case where the whole election process is ignored by the parties. What happens if the insurer never sends an election form and a person never elects? In that case, I think the conclusion that has to be reached is that the person is deemed to have elected the highest weekly benefit, because nowhere in the schedule do I find a provision that contemplates any kind of a penalty if the election forms are never delivered. However, s. 59 of the schedule does oblige the insurer under sub-paragraph (2) to promptly provide the person with the appropriate application forms, a written explanation of the benefits available, and written information to assist the person in applying, including information to assist the person in making any possible election. So, I think that there are consequences for an insurer who does not promptly provide the person with the documents under s. 59 (2), and those consequences are the kinds of consequences that are dealt with by the Superintendent of Insurance under the appropriate sections of the Insurance Act.

So, I think the consequences of an insurer failing to deliver promptly the election forms under s. 61 arise under the Insurance Act in the domain of the Superintendent of Insurance for unfair practices, rather than in providing the kind of remedy that the applicant believes is appropriate in this case.

So, what is the effect of what I am saying then? The effect of what I am saying in this case, I think is, we are going to deal with the question of Ms. Gray's entitlement to caregiver benefits. We will not have to deal with the question of entitlement to income replacement benefits. And we will not have to deal with the issue of repayment. I am certainly open to submissions from counsel with respect to error on my part with respect to this decision. If I am in error with respect to my decision on this motion, it would mean that subsequently, the matter of entitlement to income replacement benefits and the consent issue would have to be dealt with either by me or by someone else. So, I will hear from you as to whether you think that, out of an abundance of caution, I should hear this evidence, or whether that would be a waste of time. Then, we would leave it to any potential appeal or review of my decision that would call for me to hear that evidence.

MR. FARRELL:

May I speak to my friend, please.

MADAM ARBITRATOR:

Yes.

MR. FARRELL:

I say amen, to that,

I think I got what you said Okay we basically agreed that regard less of what the ruling had been' what was contemplated, wou ld be another attendance Mr. Kerr's position would have been that he was goin g to wait until the decisi on came out on the caregiv er entitlement and make an election at that time, ev en if the rulinghad favou red him make an election to claim the section 7 ben efit And if the matter p roceeds to appeal and if’t he ruling then comes out’t hat you ought not to have dealt with these issues,’t hen a similar effect would be another hearing to dea l’with those issues. So I don't think we should pro ceed to day to deal with al l’the consent and I.R.B. a nd overpayment issues. And I think my friend agrees with me

MR. KERR:

That's correct. I think the feeling was that, you know, if we lose the caregiver, we do this anyway. Because, it was a contingent. It is probably better, in light of your decision, not to hear the evidence. And if the appeal or if an appeal were to succeed, then we can do it over again.

MADAM ARBITRATOR:

Does that mean we are not going to hear from Mr. Diamond?

MR. FARRELL:

We are not going to hear from Diamond.

MR. DIAMOND:

It has been a pleasure.

...HEARING CONTINUES.

Footnotes

1. 1The Statutory Accident Benefits Schedule - Accidents on or after January 1, 1994, called "the Schedule" in this decision. The Schedule is Ontario Regulation 776/93, as amended by Ontario Regulation 635/94.
2. 2See section 61(6) of the Schedule and subject to other "ending" provisions, for which see, for example sections 12, 62(5),64(3), 64(16).
3. 3See section 18(4) of the Schedule.
4. 4O.R. 672/90, as amended by 660/93 and 779/93.
5. 5Ms. Gray testified that she had not been able to do this since the accident.
6. 6The Concise Oxford Dictionary of Current English, Oxford: Clarendon Press, 1990
7. 7Ibid.